Prager University, which sued Google's YouTube for allegedly censoring video clips based on their conservative political views, may have a legitimate bone to pick with the company. But Prager doesn't have grounds to sue.
That's the gist of new legal papers filed by the digital rights group Electronic Frontier Foundation. “YouTube’s moderation of Prager University’s content was faulty on many accounts, but it was not unconstitutional,” the EFF writes in a friend-of-the-court brief filed Wednesday with a federal appellate court.
The EFF is weighing in on a battle dating to October 2017, when Prager sued Google for allegedly censoring conservative videos on YouTube by applying the “restricted mode” filter, which made the clips unavailable to some students and library visitors.
Google countered that as a private company, it can't be sued for allegedly discriminating against clips. U.S. District Court Judge Lucy Koh in San Jose, California agreed with Google's argument and dismissed Prager's lawsuit in March.
Prager is now asking the 9th Circuit Court of Appeals to revive the lawsuit. For its part, Google denies that it engaged in political viewpoint discrimination, but says it has the right to remove or restrict clips for any reason.
The EFF is siding with Google on the legal issue, but also criticizes the company's procedures.
“The law is clear that private entities that operate online platforms for speech and that open those platforms for others to speak enjoy a First Amendment right to edit and curate the content," the EFF writes. But, the group adds: "YouTube is far from perfect when it comes to implementing its content moderation policies."
The digital rights group goes on to note that Google has taken down “countless videos documenting atrocities in Syria,” and has restricted and demonetized “LGBTQ content.”
The EFF adds that YouTube isn't the only tech company to take down “perfectly legal and valuable speech.”
It's worth noting that the EFF isn't the only one questioning how tech platforms make decisions. Conservative politicians have also criticized web companies for allegedly blocking right-wing speech, and the Justice Department recently went so far as to float the possibility of investigating whether tech companies are “stifling” right-wing views.
But unlike the Justice Department, the EFF isn't suggesting governmental action against the web platforms. Instead, the group proposes that tech companies voluntarily adopt new moderation practices, including notifying users about the precise policy their material violated, and allowing them to appeal removals.
“It is not clear whether YouTube would have made a different decision regarding Prager University had it followed this process,” the EFF writes. “But YouTube should have tried.”